Under Georgia law, the standard for testamentary capacity requires that a testator remember generally what property is subject to the will’s disposition. You don’t have to know every dollar, where it is, or all your personal property. You just have to have some idea of what you have in order to give it away. While we’d like to quibble over how specific your knowledge must be about the extent of your property to demonstrate testamentary capacity, in Webb v. Reeves, the […] Read More »

Settlors often want to give their trustees peace of mind that they can administer the trust without a court looking over their shoulder and second-guessing every act they take. So, estate planners will often put a broad exculpatory clause in the trust instrument to relieve the trustee from liability for certain actions in administering the trust. But, just as we have seen in other jurisdictions, in In re Scott David Hurwich 1986 Irrevocable Trust, the Court of Appeals of Indiana recognized […] Read More »

Fiduciaries should always be thinking of ways to get the statute of limitations started. Why have a claim hanging over your head for many years, when you can take actions that shorten the time in which a claim may be brought against you? Typically, we think of getting that time running in terms of sending regular account statements to the trust beneficiaries. In Domino v. Braswell, the Court of Appeals of Mississippi got us thinking about another way to start the clock […] Read More »

A deed transfers a lake cottage to a revocable living trust. Title to the cottage is still in the name of that trust when the grantors die. The cottage gets distributed according to the terms of that trust, right? According to the Wisconsin Court of Appeals in Simon v. Sheedy, maybe not. It depends whether someone can show that the grantors wanted the asset disposed of in another way. Patrick and Margaret Sheedy created a revocable living trust in 1995. They […] Read More »

Trust instruments occasionally permit the trustees – sometimes with or without the beneficiaries’ consent – to terminate the trust early under certain circumstances. Why continue a trust or be forced to go into court when, for example, its purpose has been fulfilled? The Elaine Radlick-Trupp Revocable Trust gave the trustees broad authority to terminate the trust. The trustees could discontinue the trust when they determined discontinuance to be justified, when it was not economically sound to continue, or when they […] Read More »

There may be good strategic reasons to get a trust litigation case into federal court, especially if you’re the trustee. But, just because you meet the diversity jurisdiction requirements to get the case into federal court doesn’t mean the federal court will hear the case. The court may still find that an exception to otherwise perfectly good diversity jurisdiction exists. While we more regularly see federal courts invoke the probate exception to diversity jurisdiction in fiduciary litigation cases, in McCavey v. McCavey-Barnett (unpublished), a […] Read More »

Because powers of attorney are often used as an elder care planning tool, they are also often used by the attorney-in-fact to manage the estate planning and finances of the principal. The creation of a trust can be an important estate planning tool, so, if the principal wants to authorize his or her agent to create a trust, that authorization should be specifically granted in the power of attorney. Not surprisingly, there is increasing litigation over the scope of power […] Read More »

Of the many reasons estate litigation can get so expansive (and expensive), family relationships often take a central role. In addition to the depth and complexity of relationships among family members, the sheer number of relationships to investigate and pin down when a claim is raised can make estate litigation particularly toilsome. For an undue influence case, for example, you may want to track down and interview every person who interacted with the testator within a certain period of time before […] Read More »

It’s not often that a personal representative asks a court to remove her. It’s probably less often that a trial court refuses to remove a personal representative who asks to be removed. But, that was the situation before the Court of Appeals of Wisconsin in Rapp v. Weller. The appellate court, however, ultimately decided that the personal representative should be removed for an unmanageable conflict of interest. What was the conflict of interest? The personal representative had conflicts stemming from her […] Read More »

Just how much notice is required before removing an executor in Georgia? Maybe not all that much. In Myers v. Myers, the beneficiary of several testamentary trusts filed a petition in probate court seeking, among other things, removal of the executor of the estate for numerous alleged breaches of fiduciary duty and a conflict of interest. The beneficiary later withdrew the request that the executor be removed out of concern over an in terrorem clause and limited the petition to a request for […] Read More »

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